(These) NFTs Are Not Art: Judge Sides With Fashion Giant Hermès in MetaBirkins Case

French design brand Hermes had accused Rothschild of violating trademarks on its popular Birkin bags by issuing the MetaBirkins NFTs


Shutterstock.com/GavrBY, modified by Blockworks


Luxury fashion house Hermes International won a US lawsuit against digital artist Mason Rothschild, with the jury ruling that his 100 “MetaBirkins” NFTs are not art.

But Rothschild and his legal team are already planning to appeal the decision, his publicist Kenneth Loo told Vogue Business.

On the third day of deliberation, the nine-person jury found Rothschild liable for trademark infringement, trademark dilution and cybsersquatting after hearing testimony from live witnesses including the defendant.

A verdict reached on Wednesday saw Hermes awarded $133,000 in total damages, and declared Rothschild’s NFTs do not count as protected speech under the First Amendment. 

The case marked one of the first intellectual-property trials over NFTs and raised questions about whether creation can be protected in the tokenized digital art world.

It was also the first to legally discuss the relationship between digital art and the reproduction of physical fashion, according to Vogue Business.

Commercial litigator Emily Poler said the jury must have concluded that Rothschild’s argument, which claimed the MetaBirkins NFTs represented artistic expression, was not credible. Instead, they saw Rothschild attempting to capitalize on the Hermes brand. 

“There is still room for artwork to be protected by the First Amendment, but this (according to the jury) isn’t it, she told Blockworks. “That’s not to say there aren’t other NFT projects out there that would be protected.”

In closing arguments on Feb. 6, Mason Rothschild’s lawyer said his client could have charged more for the MetaBirkins, per Inner City Press. More than $1.1 million in MetaBirkin NFTs were sold shortly after their launch in Dec. 2021. Hermes sent a cease and desist shortly after and sued Rothschild in January.

“It was an artistic experiment. He wanted to see what kind of value people would ascribe to these two-dimensional pictures,” the lawyer said.

“It is unlikely that people who would pay thousands of dollars on bags would be confused these #MetaBirkins were from Hermes. He has a Constitutional right to create his MetaBirkins art work, and to make money from, as long as he doesn’t mislead people.”

Rothschild slammed the verdict on Twitter, suggesting that Hermes does not care about art or artists, yet “feel they have the right to choose what art IS and who IS an artist.”

Blockworks has reached out for confirmation on their plans to appeal.

“What happened today was wrong. What happened today will continue to happen if we don’t continue to fight. This is far from over,” he said.

Don’t miss the next big story – join our free daily newsletter.


Upcoming Events

Hilton Metropole | 225 Edgware Rd, London

Mon - Wed, March 18 - 20, 2024

Crypto’s premier institutional conference returns to London in March 2024. The DAS: London Experience: Attend expert-led panel discussions and fireside chats Hear the latest developments regarding the crypto and digital asset regulatory environment directly from policymakers and experts.

Salt Lake City, UT

WED - FRI, OCTOBER 9 - 11, 2024

Pack your bags, anon — we’re heading west! Join us in the beautiful Salt Lake City for the third installment of Permissionless. Come for the alpha, stay for the fresh air. Permissionless III promises unforgettable panels, killer networking opportunities, and mountains […]

recent research

Research report - cover graphics (1).jpg


In this report, we dive into crypto private market data to gather insights on where the future of the industry is headed. Despite a notable downturn in private raises, capital continues to infuse promising projects that aim to transform payments, banking, consumer experiences, community, and more, with 2023 being the fourth-largest year for crypto venture capital.


BUZZ holds shares of Coinbase, Robinhood and MicroStrategy


Opinion: Even though I didn’t pay for my “Diamond Hands” burger with BTC, don’t let that fool you into thinking that crypto’s development is futile


The results mark “a major positive inflection point,” one analyst says, as the exchange carries net income momentum into a crypto rally


While the slate of 10 US spot bitcoin funds have tallied $4.6 billion of net inflows thus far, half of the field is lagging the leaders


Trading volumes totalled $154 billion in Q4, including $125 billion in institutional volume


DeFi on Bitcoin is all the rage right now and Stacks is positioned to benefit